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<PAGE>
EXHIBIT 4.2
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HORIZON PCS ESCROW COMPANY
HORIZON PCS, INC.
HORIZON PERSONAL COMMUNICATIONS, INC.
AND
BRIGHT PERSONAL COMMUNICATIONS SERVICES, LLC
AND EACH OF THE OTHER PARTIES THAT BECOME GUARANTORS HERETO
11 3/8% SENIOR NOTES DUE 2012
-------------------------------
INDENTURE
Dated as of July 19, 2004
-------------------------------
U.S. Bank National Association
Trustee
-------------------------------
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<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
--------------- -----------------
<S> <C>
310(a)(1).................................................................
7.10
(a)(2).................................................................
7.10
(a)(3).................................................................
N.A.
(a)(4).................................................................
N.A.
(a)(5).................................................................
7.10
(b)....................................................................
7.10
(c)....................................................................
N.A.
311(a)....................................................................
7.11
(b)....................................................................
7.11
(c)....................................................................
N.A.
312(a)....................................................................
2.05
(b)....................................................................
12.03
(c)....................................................................
12.03
313(a)....................................................................
7.06
(b)(1).................................................................
N.A.
(b)(2).................................................................
7.06; 7.07
(c)....................................................................
7.06; 12.02
(d)....................................................................
7.06
314(a)....................................................................
4.03; 12.05
(b)....................................................................
N.A.
(c)(1).................................................................
N.A.
(c)(2).................................................................
N.A.
(c)(3).................................................................
N.A.
(d)....................................................................
N.A.
(e)....................................................................
12.05
(f)....................................................................
N.A.
315(a)....................................................................
7.01
(b)....................................................................
N.A.
(c)....................................................................
N.A.
(d)....................................................................
N.A.
(e)....................................................................
N.A.
316(a) (last
sentence)....................................................
N.A.
(a)(1)(A)..............................................................
N.A.
(a)(1)(B)..............................................................
N.A.
(a)(2).................................................................
N.A.
(b)....................................................................
N.A.
(c)....................................................................
N.A.
317(a)(1).................................................................
N.A.
(a)(2).................................................................
N.A.
(b)....................................................................
N.A.
318(a)....................................................................
N.A.
(b)....................................................................
N.A.
(c)....................................................................
12.01
</TABLE>
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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<S> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY
REFERENCE.......................................... 1
Section 1.01
Definitions................................................................
1
Section 1.02 Other
Definitions..........................................................
22
Section 1.03 Incorporation by Reference of Trust Indenture
Act.......................... 22
Section 1.04 Rules of
Construction......................................................
23
ARTICLE 2 THE
NOTES...........................................................................
23
Section 2.01 Form and
Dating............................................................
23
Section 2.02 Execution and
Authentication...............................................
25
Section 2.03 Registrar and Paying
Agent................................................. 25
Section 2.04 Paying Agent to Hold Money in
Trust........................................ 26
Section 2.05 Holder
Lists...............................................................
26
Section 2.06 Transfer and
Exchange......................................................
26
Section 2.07 Replacement
Notes..........................................................
40
Section 2.08 Outstanding
Notes..........................................................
40
Section 2.09 Treasury
Notes.............................................................
40
Section 2.10 Temporary
Notes............................................................
41
Section 2.11
Cancellation...............................................................
41
Section 2.12 Defaulted
Interest.........................................................
41
ARTICLE 3 REDEMPTION AND
PREPAYMENT...........................................................
41
Section 3.01 Notices to
Trustee.........................................................
41
Section 3.02 Selection of Notes to Be Redeemed or
Purchased............................. 42
Section 3.03 Notice of
Redemption.......................................................
42
Section 3.04 Effect of Notice of
Redemption............................................. 43
Section 3.05 Deposit of Redemption or Purchase
Price.................................... 43
Section 3.06 Notes Redeemed or Purchased in
Part........................................ 44
Section 3.07 Optional
Redemption........................................................
44
Section 3.08 Mandatory
Redemption.......................................................
45
Section 3.09 Offer to Purchase by Application of Excess
Proceeds........................ 45
ARTICLE 4
COVENANTS...........................................................................
47
Section 4.01 Payment of
Notes...........................................................
47
</TABLE>
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TABLE OF CONTENTS
(continued)
<TABLE>
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<S> <C>
Section 4.02 Maintenance of Office or
Agency............................................ 47
Section 4.03
Reports....................................................................
48
Section 4.04 Compliance
Certificate.....................................................
49
Section 4.05
Taxes......................................................................
50
Section 4.06 Stay, Extension and Usury
Laws............................................. 50
Section 4.07 Restricted
Payments........................................................
50
Section 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries............. 53
Section 4.09 Incurrence of Indebtedness and Issuance of
Preferred Stock; Antilayering... 55
Section 4.10 Asset
Sales................................................................
58
Section 4.11 Transactions with
Affiliates............................................... 59
Section 4.12
Liens......................................................................
61
Section 4.13 Business
Activities........................................................
61
Section 4.14 Corporate
Existence........................................................
61
Section 4.15 Offer to Repurchase Upon Change of
Control................................. 61
Section 4.16 Payments for
Consent.......................................................
63
Section 4.17 Additional
Guarantees......................................................
63
Section 4.18 Designation of Restricted and Unrestricted
Subsidiaries.................... 64
ARTICLE 5
SUCCESSORS..........................................................................
64
Section 5.01 Merger, Consolidation or Sale of
Assets.................................... 64
Section 5.02 Successor Corporation
Substituted.......................................... 65
ARTICLE 6 DEFAULTS AND
REMEDIES...............................................................
66
Section 6.01 Events of
Default..........................................................
66
Section 6.02
Acceleration...............................................................
68
Section 6.03 Other
Remedies.............................................................
68
Section 6.04 Waiver of Past
Defaults.................................................... 68
Section 6.05 Control by
Majority........................................................
69
Section 6.06 Limitation on
Suits........................................................
69
Section 6.07 Rights of Holders of Notes to Receive
Payment.............................. 69
Section 6.08 Collection Suit by
Trustee................................................. 69
</TABLE>
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<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
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PAGE
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<S> <C>
Section 6.09 Trustee May File Proofs of
Claim........................................... 70
Section 6.10
Priorities.................................................................
70
Section 6.11 Undertaking for
Costs...................................................... 71
ARTICLE 7
TRUSTEE.............................................................................
71
Section 7.01 Duties of
Trustee..........................................................
71
Section 7.02 Rights of
Trustee..........................................................
72
Section 7.03 Individual Rights of
Trustee............................................... 73
Section 7.04 Trustee's
Disclaimer.......................................................
73
Section 7.05 Notice of
Defaults.........................................................
73
Section 7.06 Reports by Trustee to Holders of the
Notes................................. 74
Section 7.07 Compensation and
Indemnity................................................. 74
Section 7.08 Replacement of
Trustee..................................................... 75
Section 7.09 Successor Trustee by Merger,
etc........................................... 76
Section 7.10 Eligibility;
Disqualification..............................................
76
Section 7.11 Preferential Collection of Claims Against
Company.......................... 76
Section 7.12 Patriot
Act................................................................
76
Section 7.13 Payment of Liquidated
Damages.............................................. 76
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT
DEFEASANCE............................................ 77
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance................... 77
Section 8.02 Legal Defeasance and
Discharge............................................. 77
Section 8.03 Covenant
Defeasance........................................................
77
Section 8.04 Conditions to Legal or Covenant
Defeasance................................. 78
Section 8.05 Deposited Money and Government Securities to be
Held in Trust; Other
Miscellaneous
Provisions...................................................
79
Section 8.06 Repayment to
Company.......................................................
80
Section 8.07
Reinstatement..............................................................
80
ARTICLE 9 AMENDMENT, SUPPLEMENT AND
WAIVER.................................................... 81
Section 9.01 Without Consent of Holders of
Notes........................................ 81
Section 9.02 With Consent of Holders of
Notes........................................... 81
Section 9.03 Compliance with Trust Indenture
Act........................................ 83
</TABLE>
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TABLE OF CONTENTS
(continued)
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<S> <C>
Section 9.04 Revocation and Effect of
Consents.......................................... 83
Section 9.05 Notation on or Exchange of
Notes........................................... 83
Section 9.06 Trustee to Sign Amendments,
etc............................................ 83
ARTICLE 10
GUARANTEES..........................................................................
84
Section 10.01
Guarantee..................................................................
84
Section 10.02 Limitation on Guarantor
Liability.......................................... 85
Section 10.03 Execution and Delivery of
Guarantee........................................ 85
Section 10.04 Guarantors May Consolidate, etc., on Certain
Terms......................... 86
Section 10.05
Releases...................................................................
87
ARTICLE 11 SATISFACTION AND
DISCHARGE..........................................................
87
Section 11.01 Satisfaction and
Discharge................................................. 87
Section 11.02 Application of Trust
Money................................................. 88
ARTICLE 12
MISCELLANEOUS.......................................................................
89
Section 12.01 Trust Indenture Act
Controls............................................... 89
Section 12.02
Notices....................................................................
89
Section 12.03 Communication by Holders of Notes with Other
Holders of Notes.............. 90
Section 12.04 Certificate and Opinion as to Conditions
Precedent......................... 90
Section 12.05 Statements Required in Certificate or
Opinion.............................. 90
Section 12.06 Rules by Trustee and
Agents................................................ 91
Section 12.07 No Personal Liability of Directors, Officers,
Employees and Stockholders... 91
Section 12.08 Governing
Law..............................................................
91
Section 12.09 No Adverse Interpretation of Other
Agreements.............................. 91
Section 12.10
Successors.................................................................
91
Section 12.11
Severability...............................................................
92
Section 12.12 Counterpart
Originals......................................................
92
Section 12.13 Table of Contents, Headings,
etc........................................... 92
</TABLE>
-iv-
<PAGE>
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL
ACCREDITED
INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH
TRANSFERS OF TEMPORARY REGULATIONS S GLOBAL NOTE
SCHEDULES
Schedule 4.08(b)(11) Certain Encumbrances and Restrictions
-v-
<PAGE>
INDENTURE dated as of July 19, 2004 among Horizon PCS Escrow
Company, a
Delaware corporation, Horizon PCS, Inc., a Delaware corporation,
each of the
Guarantors and U.S. Bank National Association, a national
banking association,
as trustee.
The issuance of the Initial Notes pursuant to this Indenture is
part of
the reorganization of the ownership and capital structure of
Horizon PCS, Inc.
As part of the consummation of the Reorganization (as defined
below), Horizon
PCS Escrow Company will merge with and into Horizon PCS Escrow
Holding Company
("Holding Company") and Holding Company will merge with and into
Horizon PCS,
Inc. after which Horizon PCS, Inc. will be the surviving entity
(the "Mergers").
Upon consummation of the Mergers, Horizon PCS, Inc. will assume
all of the
obligations of Horizon PCS Escrow Company under this Indenture.
The word
"Company" as used herein refers only to Horizon PCS Escrow
Company before the
Mergers and to Horizon PCS, Inc. after the Mergers, it being
understood that for
purposes of Articles 4, 5 and 6, such term means Horizon PCS,
Inc. and Horizon
PCS Escrow Company. The Reorganization will be deemed not to
violate Articles 4,
5 and 6 hereof.
On the date hereof, Horizon PCS Escrow Company will deposit the
gross
proceeds from the offering of the Initial Notes, and Horizon
PCS, Inc. will
deposit such additional amounts sufficient to pay (i) all
accrued and unpaid
interest on the Initial Notes up to but not including the 120th
day after the
date hereof and (ii) certain expenses in an escrow account (the
"Escrow
Account") pursuant to an Escrow Agreement to be dated as of the
date hereof (the
"Escrow Agreement") among Horizon PCS Escrow Company, Horizon
PCS, Inc., U.S.
Bank National Association, as trustee and U.S. Bank National
Association, as
Escrow Agent (the "Escrow Agent"). The funds in the Escrow
Account will be used
on or before November 16, 2004 to consummate the Reorganization
on the terms
described in the Offering Circular or, in the event of a Special
Mandatory
Redemption, released to finance the redemption price of the
Initial Notes in
connection therewith.
The parties hereto agree as follows for the benefit of each
other and for
the equal and ratable benefit of the Holders (as defined) of the
11-3/8% Senior
Notes due 2012 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form
of
Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend
and deposited with or on behalf of, and registered in the name
of, the
Depositary or its nominee that will be issued in a denomination
equal to the
outstanding principal amount of the Notes sold in reliance on
Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such
other Person is merged with or into or became a Subsidiary of
such
specified Person, whether or not such
<PAGE>
Indebtedness is incurred in connection with, or in contemplation
of, such
other Person merging with or into, or becoming a Restricted
Subsidiary of,
such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired
by such specified Person.
"Additional Notes" means additional Notes (other than the
Initial Notes)
issued under this Indenture in accordance with Sections 2.02 and
4.09 hereof, as
part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person
directly or
indirectly controlling or controlled by or under direct or
indirect common
control with such specified Person. For purposes of this
definition, "control,"
as used with respect to any Person, means the possession,
directly or
indirectly, of the power to direct or cause the direction of the
management or
policies of such Person, whether through the ownership of voting
securities, by
agreement or otherwise; provided that beneficial ownership of
10% or more of the
Voting Stock of a Person will be deemed to be control. For
purposes of this
definition, the terms "controlling," "controlled by" and "under
common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional
paying agent.
"Annualized Consolidated Cash Flow" means, with respect to any
specified
Person, two times the Consolidated Cash Flow of such Person for
the most
recently ended two-quarter period for which internal financial
statements are
available.
"Applicable Procedures" means, with respect to any transfer or
exchange of
or for beneficial interests in any Global Note, the rules and
procedures of the
Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets
or rights; provided that the sale, lease, conveyance or other
disposition of all
or substantially all of the assets of the Company and its
Restricted
Subsidiaries taken as a whole will be governed by the provisions
of Sections
4.15 and 5.01 hereof and not by Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any
of its
Subsidiaries.
Notwithstanding the preceding, none of the following items will
be deemed
to be an Asset Sale:
(1) any single transaction or series of related transactions
that
involves assets having a Fair Market Value of less than $2.0
million;
(2) a disposition of assets between or among the Company and
its
Restricted Subsidiaries;
2
<PAGE>
(3) an issuance of Equity Interests by a Restricted Subsidiary
of
the Company to the Company or to a Restricted Subsidiary of the
Company;
(4) the disposition of assets in the ordinary course of
business,
including any disposition of damaged, worn-out or obsolete
assets in the
ordinary course of business;
(5) the sale or other disposition of cash or Cash
Equivalents;
(6) a Restricted Payment that does not violate Section 4.07
hereof
or a Permitted Investment;
(7) the sale of the Company's assets in the NTELOS Service
Area
(as defined in the Plan of Reorganization) as contemplated by
the
Reorganization; and
(8) the grant or enforcement of Liens.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state
law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial
ownership of any particular "person" (as that term is used in
Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have
beneficial ownership
of all securities that such "person" has the right to acquire by
conversion or
exercise of other securities, whether such right is currently
exercisable or is
exercisable only after the passage of time. The terms
"Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the
corporation or any committee thereof duly authorized to act on
behalf of
such board;
(2) with respect to a partnership, the board of directors of
the
general partner of the partnership;
(3) with respect to a limited liability company, the
managing
member or members or any controlling committee of managing
members
thereof; and
(4) with respect to any other Person, the board or committee
of
such Person serving a similar function.
"Broker-Dealer" has the meaning set forth in the Registration
Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
is to be
made, the amount of the liability in respect of a capital lease
that would at
that time be required to be capitalized on a balance sheet
prepared in
accordance with GAAP, and the Stated Maturity
3
<PAGE>
thereof shall be the date of the last payment of rent or any
other amount due
under such lease prior to the first date upon which such lease
may be prepaid by
the lessee without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and
all
shares, interests, participations, rights or other equivalents
(however
designated) of corporate stock;
(3) in the case of a partnership or limited liability
company,
partnership interests (whether general or limited) or
membership
interests; and
(4) any other interest or participation that confers on a
Person
the right to receive a share of the profits and losses of,
or
distributions of assets of, the issuing Person, but excluding
from all of
the foregoing any debt securities convertible into Capital
Stock, whether
or not such debt securities include any right of participation
with
Capital Stock.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured
by the United States government or any agency or instrumentality
of the
United States government (provided that the full faith and
credit of the
United States is pledged in support of those securities) having
maturities
of not more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits
with
maturities of six months or less from the date of acquisition,
bankers'
acceptances with maturities not exceeding six months and
overnight bank
deposits, in each case, with any domestic commercial bank having
capital
and surplus in excess of $500.0 million and a Thomson Bank Watch
Rating of
"B" or better;
(4) repurchase obligations with a term of not more than seven
days
for underlying securities of the types described in clauses (2)
and (3)
above entered into with any financial institution meeting
the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from Moody's Investors Service, Inc. or Standard
& Poor's
Rating Services and, in each case, maturing within nine months
after the
date of acquisition; and
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses
(1) through
(5) of this definition.
"Change of Control" means the occurrence of any of the following
events:
4
<PAGE>
(1) the direct or indirect sale, transfer, conveyance or
other
disposition (other than by way of merger or consolidation), in
one or a series
of related transactions, of all or substantially all of the
properties or assets
of the Company and its Subsidiaries taken as a whole to any
"person" (as that
term is used in Section 13(d) of the Exchange Act) other than a
Permitted
Holder;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is
that any
"person" (as defined above) (other than a Permitted Holder or
any entity formed
for the purpose of owning the Capital Stock of the Company)
becomes the
Beneficial Owner, directly or indirectly, of more than 50% of
the Voting Stock
of the Company, measured by voting power rather than number of
shares; or
(4) the first day on which a majority of the members of the
Board
of Directors of the Company are not Continuing Directors.
"Clearstream" means Clearstream Banking, S.A.
"Company" has the meaning set forth in the preamble hereto.
"Consolidated
Cash Flow" means, with respect to any specified Person for any
period, the
Consolidated Net Income of such Person for such period plus,
without
duplication:
(1) provision for taxes based on income or profits of such
Person
and its Restricted Subsidiaries for such period, to the extent
that such
provision for taxes was deducted in computing such Consolidated
Net Income; plus
(2) the Consolidated Interest Expense of such Person and its
Restricted Subsidiaries for such period, to the extent that such
Consolidated
Interest Expense was deducted in computing such Consolidated Net
Income; plus
(3) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses
that were paid
in a prior period) and other non-cash expenses (excluding any
such non-cash
expense to the extent that it represents an accrual of or
reserve for cash
expenses in any future period or amortization of a prepaid cash
expense that was
paid in a prior period) of such Person and its Restricted
Subsidiaries for such
period to the extent that such depreciation, amortization and
other non-cash
expenses were deducted in computing such Consolidated Net
Income; plus
(4) for purposes of the definition of Debt to Cash Flow
Ratio,
non-recurring fees or expenses made or incurred in connection
with the
Reorganization not to exceed $10.0 million; minus
(5) noncash items increasing such Consolidated Net Income for
such
period, other than the accrual of revenue in the ordinary course
of business,
5
<PAGE>
in each case, on a consolidated basis and determined in
accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on
the
income or profits of, and the depreciation and amortization and
other non-cash
expenses of, a Restricted Subsidiary of the Company will be
added to
Consolidated Net Income to compute Consolidated Cash Flow of the
Company only to
the extent that a corresponding amount would be permitted at the
date of
determination to be dividended to the Company by such Restricted
Subsidiary
without prior governmental approval (that has not been
obtained), and without
direct or indirect restriction pursuant to the terms of its
charter and all
agreements, instruments, judgments, decrees, orders, statutes,
rules and
governmental regulations applicable to that Restricted
Subsidiary or its
stockholders.
"Consolidated Indebtedness" means, with respect to any specified
Person as
of any date of determination, the sum, without duplication,
of:
(1) the total amount of Indebtedness of such Person and its
Restricted Subsidiaries; plus
(2) the total amount of Indebtedness of any other Person, to
the
extent that such Indebtedness has been Guaranteed by the
referenced Person or
one or more of its Restricted Subsidiaries; plus
(3) the aggregate liquidation value of all Disqualified Stock
of
such Person and any of its Restricted Subsidiaries that have
Guaranteed the
Indebtedness of such Person and all preferred stock of the
Restricted
Subsidiaries of such Person,
in each case, on a consolidated basis and determined in
accordance
with GAAP, but excluding in each case Hedging Obligations.
"Consolidated Interest Expense" means, with respect to any
specified
Person for any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued, including,
without limitation, amortization of debt issuance costs and
original issue
discount, non-cash interest payments, the interest component of
any deferred
payment obligations, the interest component of all payments
associated with
Capital Lease Obligations, commissions, discounts and other fees
and charges
incurred in respect of letter of credit or bankers' acceptance
financings, and
net of the effect of all payments made or received pursuant to
Hedging
Obligations in respect of interest rates; plus
(2) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period;
plus
(3) any interest expense on Indebtedness of another Person that
is
Guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a
Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or
not such Guarantee or Lien is called upon; plus
6
<PAGE>
(4) the product of (a) all dividends, whether paid or accrued
and
whether or not in cash, on any series of preferred stock of such
Person or any
of its Restricted Subsidiaries, other than dividends on Equity
Interests payable
solely in Equity Interests of the Company (other than
Disqualified Stock) or to
the Company or a Restricted Subsidiary of the Company, times (b)
a fraction, the
numerator of which is one and the denominator of which is one
minus the then
current combined federal, state and local statutory tax rate of
such Person,
expressed as a decimal, in each case, on a consolidated basis
and in accordance
with GAAP.
"Consolidated Net Income" means, with respect to any specified
Person for
any period, the aggregate of the Net Income of such Person and
its Restricted
Subsidiaries for such period, on a consolidated basis,
determined in accordance
with GAAP; provided that:
(1) the Net Income or loss of any Person that is not a
Restricted
Subsidiary or that is accounted for by the equity method of
accounting will be
included only to the extent of the amount of dividends or
similar distributions
paid in cash to the specified Person or a Restricted Subsidiary
of the Person;
(2) the Net Income of any Restricted Subsidiary will be
excluded
to the extent that the declaration or payment of dividends or
similar
distributions by that Restricted Subsidiary of that Net Income
is not at the
date of determination permitted without any prior governmental
approval (that
has not been obtained) or, directly or indirectly, by operation
of the terms of
its charter or any agreement, instrument, judgment, decree,
order, statute, rule
or governmental regulation applicable to that Restricted
Subsidiary or its
stockholders;
(3) the cumulative effect of a change in accounting
principles
will be excluded; and
(4) notwithstanding clause (1) above, the Net Income of any
Unrestricted Subsidiary will be excluded, whether or not
distributed to the
specified Person or one of its Subsidiaries.
"Continuing Directors" means, as of any date of determination,
any member
of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of
this
Indenture; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were
members of such Board of Directors at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" means an office of the
Trustee at
which at any time its corporate trust business shall be
administered, which
office at the date hereof is located at Goodwin Square, 225
Asylum Street,
Hartford, Connecticut, 06103, Attention: Corporate Trust
Services, 23rd Floor,
or such other address as the Trustee may designate from time to
time by notice
to the Holders and the Company, or the principal corporate trust
office of any
successor Trustee (or such other address as such successor
Trustee may designate
from time to time by notice to the Holders and the Company).
7
<PAGE>
"Custodian" means the Trustee, as custodian with respect to the
Notes in
global form, or any successor entity thereto.
"Debt to Cash Flow Ratio" means, with respect to any specified
Person as
of any date of determination, the ratio of (a) the Consolidated
Indebtedness of
such Person as of such date to (b) the Annualized Consolidated
Cash Flow of such
Person for the two most recent full fiscal quarters for which
internal financial
statements are available prior to such date of determination,
determined on a
pro forma basis after giving effect to all acquisitions or
dispositions of
assets and incurrences or repayments of indebtedness (other than
working capital
loans) made by such Person and its Restricted Subsidiaries from
the beginning of
such two-quarter period through and including such date of
determination as if
such acquisitions, dispositions, incurrences and repayments had
occurred at the
beginning of such two-quarter period.
In addition, for purposes of calculating the Debt to Cash Flow
Ratio:
(1) acquisitions that have been made by the specified Person
or
any of its Restricted Subsidiaries, including through mergers or
consolidations,
or any Person or any of its Restricted Subsidiaries acquired by
the specified
Person or any of its Restricted Subsidiaries, and including
increases in
ownership of Restricted Subsidiaries, during the two-quarter
reference period or
subsequent to such reference period and on or prior to the date
on which the
event for which the calculation of the Debt to Cash Flow Ratio
is made (the
"Calculation Date") will be given pro forma effect (determined
in good faith on
a reasonable basis in accordance with Regulation S-X under the
Securities Act by
a responsible financial or accounting officer of the specified
person) as if
they had occurred on the first day of the two-quarter reference
period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and
operations or businesses
(and ownership interests therein) disposed of prior to the
Calculation Date,
will be excluded;
(3) any Person that is a Restricted Subsidiary on the
Calculation
Date will be deemed to have been a Restricted Subsidiary at all
times during
such two-quarter period;
(4) any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted
Subsidiary at any
time during such two-quarter period; and
(5) if the reference date for the Calculation Date includes
either
of the quarters ended March 31, 2004 or June 30, 2004, the Debt
to Consolidated
Cash Flow Ratio will be calculated on the same basis as Adjusted
EBITDA included
in the Offering Circular.
"Default" means any event that is, or with the passage of time
or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the
name of the
Holder thereof and issued in accordance with Section 2.06
hereof, substantially
in the form of Exhibit A hereto except that such Note shall not
bear the Global
Note Legend and shall not have the "Schedule of Exchanges of
Interests in the
Global Note" attached thereto.
8
<PAGE>
"Deposit" means the $125 million initially deposited with the
Escrow Agent
under the Escrow Agreement, which at the time of deposit
represented 100% of the
gross proceeds from the issuance of the Initial Notes, plus
interest scheduled
to accrue on the Notes to, but not including, November 16, 2004,
plus amounts
payable for certain expenses as provided in the Escrow
Agreement, as such sum
may increase as a result of the investment and reinvestment
thereof.
"Depositary" means, with respect to the Notes issuable or issued
in whole
or in part in global form, DTC, and any and all successors
thereto appointed as
depositary hereunder and having become such pursuant to the
applicable provision
of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the
terms of any security into which it is convertible, or for which
it is
exchangeable, in each case, at the option of the holder of the
Capital Stock),
or upon the happening of any event, matures or is mandatorily
redeemable,
pursuant to a sinking fund obligation or otherwise, or
redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or
prior to the date
that is 91 days after the date on which the Notes mature.
Notwithstanding the
preceding sentence, any Capital Stock that would constitute
Disqualified Stock
solely because the holders of the Capital Stock have the right
to require the
Company to repurchase such Capital Stock upon the occurrence of
a change of
control or an asset sale will not constitute Disqualified Stock
if the terms of
such Capital Stock provide that the Company may not repurchase
or redeem any
such Capital Stock pursuant to such provisions unless such
repurchase or
redemption complies with Section 4.07 hereof. The amount of
Disqualified Stock
deemed to be outstanding at any time for purposes of this
Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries
may become
obligated to pay upon the maturity of, or pursuant to any
mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued
dividends.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary
of the
Company that was formed under the laws of the United States or
any state of the
United States or the District of Columbia or that guarantees or
otherwise
provides direct credit support for any Indebtedness of the
Company.
"Equity Interests" means Capital Stock and all warrants, options
or other
rights to acquire Capital Stock (but excluding any debt security
that is
convertible into, or exchangeable for, Capital Stock).
"Escrow Agreement" means the Escrow Agreement, dated as of July
19, 2004,
among Horizon PCS Escrow Company, Horizon PCS, Inc., U.S. Bank
National
Association, as trustee under the Indenture, and U.S. Bank
National Association,
as escrow agent, as such may be amended from time to time.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear
system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
referenced
in Section 2.06(f) hereof.
9
<PAGE>
"Exchange Offer" has the meaning set forth in the Registration
Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the
Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and
its
Subsidiaries in existence on the date of this Indenture, until
such amounts are
repaid.
"Fair Market Value" means the value that would be paid by a
willing buyer
to an unaffiliated willing seller in a transaction not involving
distress or
necessity of either party, determined in good faith by the Board
of Directors of
the Company (unless otherwise provided in this Indenture).
"GAAP" means generally accepted accounting principles set forth
in the
opinions and pronouncements of the Accounting Principles Board
of the American
Institute of Certified Public Accountants and statements and
pronouncements of
the Financial Accounting Standards Board or in such other
statements by such
other entity as have been approved by a significant segment of
the accounting
profession, which are in effect on the date of this
Indenture.
"Global Note Legend" means the legend set forth in Section
2.06(g)(2)
hereof, which is required to be placed on all Global Notes
issued under this
Indenture.
"Global Notes" means, individually and collectively, each of
the
Restricted Global Notes and the Unrestricted Global Notes
deposited with or on
behalf of and registered in the name of the Depository or its
nominee,
substantially in the form of Exhibit A hereto and that bears the
Global Note
Legend and that has the "Schedule of Exchanges of Interests in
the Global Note"
attached thereto, issued in accordance with Section 2.01,
2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or
obligations
guaranteed by, the United States of America, and the payment for
which the
United States pledges its full faith and credit.
"guarantee" means a guarantee other than by endorsement of
negotiable
instruments for collection in the ordinary course of business,
direct or
indirect, in any manner including, without limitation, by way of
a pledge of
assets or through letters of credit or reimbursement agreements
in respect
thereof, of all or any part of any Indebtedness (whether arising
by virtue of
partnership arrangements, or by agreements to keep-well, to
purchase assets,
goods, securities or services, to take or pay or to maintain
financial statement
conditions or otherwise).
"Guarantee" means a guarantee of the Notes by a Guarantor in
accordance
with this Indenture.
"Guarantor" means, after the Merger Date, each of:
(1) Horizon Personal Communications, Inc. and Bright
Personal
Communications Services, LLC; and
10
<PAGE>
(2) any Subsidiary of the Company that executes a Guarantee
in
accordance with the provisions of this Indenture,
and their respective successors and assigns, in each case, until
the Guarantee
of such Person has been released in accordance with the
provisions of this
Indenture.
"Hedging Obligations" means, with respect to any specified
Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating
or from floating to fixed), interest rate cap agreements and
interest rate
collar agreements;
(2) other agreements or arrangements designed to manage
interest
rates or interest rate risk; and
(3) other agreements or arrangements designed to protect
such
Person against fluctuations in currency exchange rates or
commodity prices.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form
of Exhibit
A hereto bearing the Global Note Legend and the Private
Placement Legend and
deposited with or on behalf of and registered in the name of the
Depositary or
its nominee that will be issued in a denomination equal to the
outstanding
principal amount of the Notes sold to Institutional Accredited
Investors.
"Immaterial Subsidiary" means, as of any date, any Restricted
Subsidiary
whose total assets, as of that date, are less than $100,000 and
whose total
revenues for the most recent 12-month period do not exceed
$100,000; provided
that a Restricted Subsidiary will not be considered to be an
Immaterial
Subsidiary if it, directly or indirectly, guarantees or
otherwise provides
direct credit support for any Indebtedness of the Company.
"Indebtedness" means, with respect to any specified Person,
any
indebtedness of such Person (excluding accrued expenses and
trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments
or letters of credit (or reimbursement agreements in respect
thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the
purchase
price of any property or services due more than six months after
such property
is acquired or such services are completed; or
11
<PAGE>
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than
letters of
credit and Hedging Obligations) would appear as a liability upon
a balance sheet
of the specified Person prepared in accordance with GAAP. In
addition, the term
"Indebtedness" includes all Indebtedness of others secured by a
Lien on any
asset of the specified Person (whether or not such Indebtedness
is assumed by
the specified Person) and, to the extent not otherwise included,
the Guarantee
by the specified Person of any Indebtedness of any other
Person.
"Indenture" means this Indenture, as amended or supplemented
from time to
time.
"Indirect Participant" means a Person who holds a beneficial
interest in a
Global Note through a Participant.
"Initial Notes" means the first $125,000,000 aggregate principal
amount of
Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Credit Suisse First Boston LLC and
Lehman
Brothers Inc.
"Institutional Accredited Investor" means an institution that is
an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or
(7) under the
Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all direct or
indirect
investments by such Person in other Persons (including
Affiliates) in the forms
of loans (including the Guarantees or other obligations),
advances or capital
contributions (excluding commission, payroll, travel and similar
advances to
officers and employees made in the ordinary course of business),
purchases or
other acquisitions for consideration of Indebtedness, Equity
Interests or other
securities, together with all items that are or would be
classified as
investments on a balance sheet prepared in accordance with GAAP.
If the Company
or any Restricted Subsidiary of the Company sells or otherwise
disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary
of the Company
such that, after giving effect to any such sale or disposition,
such Person is
no longer a Restricted Subsidiary of the Company, the Company
will be deemed to
have made an Investment on the date of any such sale or
disposition equal to the
Fair Market Value of the Company's Investments in such
Restricted Subsidiary
that were not sold or disposed of in an amount determined as
provided in the
final paragraph of Section 4.07(b) hereof. The acquisition by
the Company or any
Restricted Subsidiary of the Company of a Person that holds an
Investment in a
third Person will be deemed to be an Investment by the Company
or such
Restricted Subsidiary in such third Person in an amount equal to
the Fair Market
Value of the Investments held by the acquired Person in such
third Person in an
amount determined as provided in the final paragraph of Section
4.07(b) hereof.
Except as otherwise provided in this Indenture, the amount of an
Investment will
be determined at the time the Investment is made and without
giving effect to
subsequent changes in value.
"Issue Date" means July 19, 2004.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking
institutions in the City of New York or at a place of payment
are authorized by
law, regulation or executive order to remain closed. If a
payment date is a
Legal Holiday at a place of payment, payment
12
<PAGE>
may be made at that place on the next succeeding day that is not
a Legal
Holiday, and no interest shall accrue on such payment for the
intervening
period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by
the Company and sent to all Holders of the Notes for use by such
Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge,
charge, security interest or encumbrance of any kind in respect
of such asset,
whether or not filed, recorded or otherwise perfected under
applicable law,
including any conditional sale or other title retention
agreement, any lease in
the nature thereof, any option or other agreement to sell or
give a security
interest in and any filing of or agreement to give any financing
statement under
the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"Liquidated Damages" means all liquidated damages then owing
pursuant to
the Registration Rights Agreement.
"Mergers" has the meaning set forth in the preamble hereto.
"Merger Date" means the date and time of the Mergers.
"Net Income" means, with respect to any specified Person, the
net income
(loss) of such Person, determined in accordance with GAAP and
before any
reduction in respect of preferred stock dividends, excluding,
however:
(1) any gain or loss, together with any related provision
for
taxes on such gain or loss, realized in connection with:
(a) any Asset Sale; or
(b) the disposition of any securities by such Person or any
of its Restricted Subsidiaries or the extinguishment of any
Indebtedness
of such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any
related
provision for taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the
Company
or any of its Restricted Subsidiaries in respect of any Asset
Sale (including,
without limitation, any cash received upon the sale or other
disposition of any
non-cash consideration received in any Asset Sale), net of the
direct costs
relating to such Asset Sale, including, without limitation,
legal, accounting
and investment banking fees, and sales commissions, and any
relocation expenses
incurred as a result of the Asset Sale, taxes paid or payable as
a result of the
Asset Sale, in each case, after taking into account any
available tax credits or
deductions and any tax sharing arrangements, and amounts
required to be applied
to the repayment of Indebtedness (other than revolving
Indebtedness incurred
pursuant to clause (1) of the definition of "Permitted Debt"
where the related
commitments are not permanently reduced) secured by a Lien on
the asset or
assets that were the subject of such Asset Sale and any reserve
for adjustment
in respect of the
13
<PAGE>
sale price of such asset or assets established in accordance
with GAAP,
including, without limitation, pension and other post-employment
benefit
liabilities, liabilities related to environmental matters and
liabilities under
any indemnification obligations associated with such Asset
Sale.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its
Restricted
Subsidiaries, except as permitted by Section 4.07 hereof (a)
provides
credit support of any kind (including any undertaking, agreement
or
instrument that would constitute Indebtedness), (b) is directly
or
indirectly liable as a guarantor or otherwise or (c) constitutes
the
lender; and
(2) no default with respect to which (including any rights
that
the holders of the Indebtedness may have to take enforcement
action
against an Unrestricted Subsidiary) would permit upon notice,
lapse of
time or both any holder of any other Indebtedness of the Company
or any of
its Restricted Subsidiaries to declare a default on such
other
Indebtedness or cause the payment of the Indebtedness to be
accelerated or
payable prior to its Stated Maturity.
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
The Initial Notes and the Additional Notes shall be treated as a
single class
for all purposes under this Indenture, and unless the context
otherwise
requires, all references to the Notes shall include the Initial
Notes and any
Additional Notes.
"Obligations" means any principal, interest, penalties,
fees,
indemnifications, reimbursements, damages and other liabilities
payable under
the documentation governing any Indebtedness.
"Offering Circular" means the confidential offering circular of
the
Company, dated July 8, 2004, relating to the offer and sale of
the Initial
Notes.
"Officer" means, with respect to any Person, the Chairman of the
Board,
the Chief Executive Officer, the President, the Chief Operating
Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller,
the Secretary, any Assistant Secretary or any Vice-President of
such Person.
"Officers' Certificate" means a certificate signed on behalf of
the
Company by two Officers of the Company, one of whom must be the
principal
executive officer, the principal financial officer, the
treasurer or the
principal accounting officer of the Company, that meets the
requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably
acceptable to the Trustee, that meets the requirements of
Section 12.05 hereof.
The counsel may be an employee of or counsel to the Company, any
Subsidiary of
the Company or the Trustee.
14
<PAGE>
"Participant" means, with respect to the Depositary, Euroclear
or
Clearstream, a Person who has an account with the Depositary,
Euroclear or
Clearstream, respectively (and, with respect to DTC, shall
include Euroclear and
Clearstream).
"Permitted Business" means the delivery or distribution of
telecommunications, voice, data or video services, or any
business or activity
reasonably related or ancillary thereto.
"Permitted Holder" means:
(1) Sprint Corporation and its Affiliates;
(2) any Sprint PCS Affiliate and its Affiliates; and
(3) Apollo Management VI, L.P. and its respective Affiliates
(other than its portfolio companies).
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary
of
the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary
of
the Company in a Person, if in connection with or as a result of
such
Investment:
(a) such Person becomes a Restricted Subsidiary of the
Company; or
(b) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets
to, or is
liquidated into, the Company or a Restricted Subsidiary of the
Company;
(4) any Investment made as a result of the receipt of
non-cash
consideration from an Asset Sale that was made pursuant to and
in compliance
Section 4.10 hereof;
(5) any acquisition of assets or Capital Stock solely in
exchange
for the issuance of Equity Interests (other than Disqualified
Stock) of the
Company;
(6) any Investments received in compromise or resolution of
(A)
obligations of trade creditors or customers that were incurred
in the ordinary
course of business of the Company or any of its Restricted
Subsidiaries,
including pursuant to any plan of reorganization or similar
arrangement upon the
bankruptcy or insolvency of any trade creditor or customer; or
(B) litigation,
arbitration or other disputes with Persons who are not
Affiliates of the
Company;
(7) Investments represented by Hedging Obligations;
(8) Investments in prepaid expenses, negotiable instruments
held
for collection, and lease, utility and workers' compensation,
performance and
other similar deposits;
15
<PAGE>
(9) loans or advances to employees made in the ordinary course
of
business of the Company or any Restricted Subsidiary of the
Company in an
aggregate principal amount not to exceed $1.0 million at any one
time
outstanding;
(10) receivables owing to the Company or a Restricted Subsidiary
in
the ordinary course of business;
(11) Investments existing on the Issue Date and any
Investments
made with the proceeds of dispositions thereof; and
(12) repurchases of the Notes.
"Permitted Liens" means:
(1) Liens on assets of the Company or any of its Restricted
Subsidiaries securing Indebtedness incurred pursuant to Section
4.09(b)(1)
hereof;
(2) Liens in favor of the Company or the Guarantors;
(3) Liens on property of a Person existing at the time such
Person
is merged with or into or consolidated with the Company or any
Subsidiary of the
Company; provided that such Liens were in existence prior to the
contemplation
of such merger or consolidation and do not extend to any assets
other than those
of the Person merged into or consolidated with the Company or
the Subsidiary;
(4) Liens on property (including Capital Stock) existing at
the
time of acquisition of the property by the Company or any
Subsidiary of the
Company; provided that such Liens were in existence prior to,
such acquisition,
and not incurred in contemplation of, such acquisition;
(5) Liens to secure the performance of statutory
obligations,
surety or appeal bonds, performance bonds or other obligations
of a like nature
incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09(b)(4) hereof covering
only the assets
acquired with or financed by such Indebtedness;
(7) Liens existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or
claims
that are not yet delinquent or that are being contested in good
faith by
appropriate proceedings promptly instituted and diligently
concluded; provided
that any reserve or other appropriate provision as is required
in conformity
with GAAP has been made therefor;
(9) Liens imposed by law, such as carriers', warehousemen's,
landlord's and mechanics' Liens, in each case, incurred in the
ordinary course
of business;
16
<PAGE>
(10) survey exceptions, easements or reservations of, or rights
of
others for, licenses, rights-of-way, sewers, electric lines,
telegraph and
telephone lines and other similar purposes, or zoning or other
restrictions as
to the use of real property that were not incurred in connection
with
Indebtedness and that do not in the aggregate materially
adversely affect the
value of said properties or materially impair their use in the
operation of the
business of such Person;
(11) Liens, other than Liens securing Indebtedness for money
borrowed, that may arise under the Company's management and
services agreements
with Sprint Spectrum L.P. and its Affiliates;
(12) Liens for security for payment of workers' compensation
or
other insurance or arising under workers' compensation laws or
similar
legislation;
(13) Liens with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created,
assumed or
permitted to exist and arising by, through or under a landlord
or owner of the
leased property, with or without the consent of the lessee, none
of which
materially impairs the use of any parcel of property material to
the business of
the Company and its Restricted Subsidiaries, taken as a whole,
or the value of
such property for the purpose of such business;
(14) Liens arising from leases, subleases, licenses or other
similar rights that do not interfere with the ordinary course of
the business of
the Company and its Restricted Subsidiaries;
(15) Liens securing reimbursement obligations with respect
to
letters of credit that encumber documents and other property
relating to such
letters of credit;
(16) Liens created for the benefit of (or to secure) the Notes
(or
the Guarantees);
(17) Liens from judgments not constituting an Event of
Default;
(18) Liens in favor of the Trustee for its own benefit and
similar
Liens in favor of other trustees;
(19) setoff, chargeback and rights of depositary and
collection
banks;
(20) Liens arising from the deposit of funds to defease
Indebtedness;
(21) Liens securing indemnities, purchase price adjustments,
holdbacks or contingent payment obligations based on the
performance of acquired
or disposed of assets or similar obligations related to the
acquisition or
disposition of assets; and
(22) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided,
however, that:
17
<PAGE>
(a) the new Lien shall be limited to all or part of the same
property and assets that secured or, under the written
agreements pursuant
to which the original Lien arose, could secure the original Lien
(plus
improvements and accessions to, such property or proceeds or
distributions
thereof); and
(b) the Indebtedness secured by the new Lien is not
increased to any amount greater than the sum of (x) the
outstanding
principal amount, or, if greater, committed amount, of the
Permitted
Refinancing Indebtedness plus interest thereon and (y) an amount
necessary
to pay any fees and expenses, including premiums, related to
such renewal,
refunding, refinancing, replacement, defeasance or
discharge.
In each case set forth above, notwithstanding any stated
limitation on the
assets that may be subject to such Lien, a Permitted Lien on a
specified asset
or group or type of assets may include Liens on all
improvements, additions and
accessions thereto and all products and proceeds thereof
(including, without
limitation, dividends, distributions and increases in respect
thereof).
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company
or any of its Restricted Subsidiaries issued in exchange for, or
the net
proceeds of which are used to extend, renew, refund, refinance,
replace, defease
or discharge other Indebtedness of the Company or any of its
Restricted
Subsidiaries (other than intercompany Indebtedness); provided
that:
(1) the principal amount (or accreted value, if applicable)
of
such Permitted Refinancing Indebtedness does not exceed the
principal amount (or
accreted value, if applicable) of the Indebtedness extended,
renewed, refunded,
refinanced, replaced, defeased or discharged (plus all accrued
interest on the
Indebtedness and the amount of all fees and expenses, including
premiums,
incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity
date later than the final maturity date of, and has a Weighted
Average Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of, the
Indebtedness being extended, renewed, refunded, refinanced,
replaced, defeased
or discharged;
(3) if the Indebtedness being extended, renewed, refunded,
refinanced, replaced, defeased or discharged is subordinated in
right of payment
to the Notes, such Permitted Refinancing Indebtedness is
subordinated in right
of payment to the Notes on terms at least as favorable to the
Holders of Notes
as those contained in the documentation governing the
Indebtedness being
extended, renewed, refunded, refinanced, replaced, defeased or
discharged; and
(4) such Indebtedness is incurred either by the Company or by
the
Restricted Subsidiary who is the obligor on the Indebtedness
being extended,
renewed, refunded, refinanced, replaced, defeased or
discharged.
"Person" means any individual, corporation, partnership, joint
venture,
association, joint-stock company, trust, unincorporated
organization, limited
liability company or government or other entity.
18
<PAGE>
"Plan of Reorganization" means the plan of reorganization
originally filed
by Horizon PCS, Inc. on June 27, 2004 under Chapter 11 of the
Bankruptcy Code as
confirmed by the United States Bankruptcy Court for the Southern
District of
Ohio, as it may be amended in a manner in which the confirmed
plan of
reorganization will be substantially in accordance with the
terms described in
the Offering Circular.
"Private Placement Legend" means the legend set forth in
Section
2.06(g)(1) hereof to be placed on all Notes issued under this
Indenture except
where otherwise permitted by the provisions of this
Indenture.
"Purchase Agreement" means the Purchase Agreement, dated July 8,
2004,
among Horizon PCS Escrow Company, Horizon PCS, Inc., the
Guarantors named
therein and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registration Rights Agreement" means the Registration Rights
Agreement,
dated as of July 19, 2004, among Horizon PCS Escrow Company,
Horizon PCS, Inc.,
the Guarantors and the other parties named on the signature
pages thereof, as
such agreement may be amended, modified or supplemented from
time to time and,
with respect to any Additional Notes, one or more registration
rights agreements
among the Company, the Guarantors and the other parties thereto,
as such
agreement(s) may be amended, modified or supplemented from time
to time,
relating to rights given by the Company to the purchasers of
Additional Notes to
register such Additional Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means the Temporary Regulation S
Global Note
and the Permanent Regulation S Global Note substantially in the
form of Exhibit
A hereto bearing the Global Note Legend and the Private
Placement Legend and
deposited with or on behalf of and registered in the name of the
Depositary or
its nominee, issued in a denomination equal to the outstanding
principal amount
of the Notes sold in reliance on Rule 903 of Regulation S.
"Reorganization" means the transactions contemplated under the
Plan of
Reorganization as described in the Offering Circular.
"Responsible Officer," when used with respect to the Trustee,
means any
officer within the Corporate Trust Services of the Trustee (or
any successor
group of the Trustee), including any vice president, assistant
treasurer or any
other officer of the Trustee customarily performing functions
similar to those
performed by any of the above designated officers and also
means, with respect
to a particular corporate trust matter, any other officer to
whom such matter is
referred because of his knowledge of and familiarity with the
particular
subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement
Legend.
19
<PAGE>
"Restricted Investment" means an Investment other than a
Permitted
Investment.
"Restricted Period" means the period prior to and including the
40th day
after the later of (i) the commencement of this offering of the
Notes or (ii)
the closing of this offering of the Notes.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent
Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Shelf Registration Statement" means the Shelf Registration
Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect
on the date of
this Indenture.
"Sprint PCS Affiliate" means any Person whose sole or
predominant business
is operating a personal communications services business
pursuant to
arrangements with Sprint Spectrum L.P. and/or its Affiliates, or
their
successors, similar to the Company's management and services
agreements with
Sprint Spectrum L.P. and its Affiliates.
"Stated Maturity" means, with respect to any installment of
interest or
principal on any series of Indebtedness, the date on which the
payment of
interest or principal was scheduled to be paid in the
documentation governing
such Indebtedness as of the date of this Indenture, and will not
include any
contingent obligations to repay, redeem or repurchase any such
interest or
principal prior to the date originally scheduled for the payment
thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which
more than 50% of the total voting power of shares of Capital
Stock
entitled (without regard to the occurrence of any contingency
and after
giving effect to any voting agreement or stockholders' agreement
that
effectively transfers voting power) to vote in the election of
directors,
managers or trustees of the corporation, association or other
business
entity is at the time owned or controlled, directly or
indirectly, by that
Person or one or more of the other Subsidiaries of that Person
(or a
combination thereof); and
20
<PAGE>
(2) any partnership (a) the sole general partner or the
managing
general partner of which is such Person or a Subsidiary of such
Person or
(b) the only general partners of which are that Person or one or
more
Subsidiaries of that Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa-77bbbb).
"Trustee" means U.S. Bank National Association until a successor
replaces
it in accordance with the applicable provisions of this
Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does
not bear
and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not
bear and is
not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company
that is
designated by the Board of Directors of the Company as an
Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors,
but only to the
extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party
to
any agreement, contract, arrangement or understanding with the
Company or
any Restricted Subsidiary of the Company unless the terms of any
such
agreement, contract, arrangement or understanding are no less
favorable to
the Company or such Restricted Subsidiary than those that might
be
obtained at the time from Persons who are not Affiliates of the
Company;
(3) is a Person with respect to which neither the Company nor
any
of its Restricted Subsidiaries has any direct or indirect
obligation (a)
to subscribe for additional Equity Interests or (b) to maintain
or
preserve such Person's financial condition or to cause such
Person to
achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or
any of its
Restricted Subsidiaries.
"U.S. Person" means a U.S. Person as defined in Rule 902(k)
promulgated
under the Securities Act.
"Voting Stock" of any specified Person as of any date means the
Capital
Stock of such Person that is at the time entitled to vote in the
election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to
any
Indebtedness at any date, the number of years obtained by
dividing:
21
<PAGE>
(1) the sum of the products obtained by multiplying (a) the
amount
of each then remaining installment, sinking fund, serial
maturity or other
required payments of principal, including payment at final
maturity, in
respect of the Indebtedness, by (b) the number of years
(calculated to the
nearest one-twelfth) that will elapse between such date and the
making of
such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
Section 1.02 Other Definitions.
<TABLE>
<CAPTION>
Defined in
Term Section
---- -------
<S> <C>
"Affiliate
Transaction".............................................................
4.11
"Asset Sale
Offer"..................................................................
3.09
"Authentication
Order"..............................................................
2.02
"Change of Control
Offer"...........................................................
4.15
"Change of Control
Payment".........................................................
4.15
"Change of Control Payment
Date".................................................... 4.15
"Covenant
Defeasance"...............................................................
8.03
"DTC"...............................................................................
2.03
"Event of
Default"..................................................................
6.01
"Excess
Proceeds"...................................................................
4.10
"incur".............................................................................
4.09
"Legal
Defeasance"..................................................................
8.02
"Offer
Amount"......................................................................
3.09
"Offer
Period"......................................................................
3.09
"Paying
Agent"......................................................................
2.03
"Payment
Default"...................................................................
6.01
"Permanent Regulation S Global
Note"................................................ 2.01
"Permitted
Debt"....................................................................
4.09
"Purchase
Date".....................................................................
3.09
"Registrar".........................................................................
2.03
"Restricted
Payments"...............................................................
4.07
"Special Mandatory Redemption
Date"................................................. 3.08
"Temporary Regulation S Global
Note"................................................ 2.01
</TABLE>
Section 1.03 Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is
incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the
following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
22
<PAGE>
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes and the Guarantees means the Company and
the
Guarantors, respectively, and any successor obligor upon the
Notes and the
Guarantees, respectively.
All other terms used in this Indenture that are defined by the
TIA,
defined by TIA reference to another statute or defined by SEC
rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural
include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
and
(7) references to sections of or rules under the Securities Act
will
be deemed to include substitute, replacement of successor
sections or
rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication
will be substantially in the form of Exhibit A hereto. The Notes
may have
notations, legends or endorsements required by law, stock
exchange rule or
usage. Each Note will be dated the date of its authentication.
The Notes shall
be in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes will constitute,
and are
hereby expressly made, a part of this Indenture and the Company
and the Trustee,
by their execution and delivery of this Indenture, expressly
agree to such terms
and provisions and to be bound thereby. However, to the extent
any provision of
any Note conflicts with the express provisions of this
Indenture, the provisions
of this Indenture shall govern and be controlling.
23
<PAGE>
(b) Rule 144A Global Notes. Notes offered and sold in reliance
on Rule
144A shall be issued initially in the form of one or more notes
in registered,
global form, without interest coupons, and will be substantially
in the form of
Exhibit A hereto (including the Global Note Legend thereon and
the "Schedule of
Exchanges of Interests in the Global Note" attached thereto).
Notes offered and
sold in reliance on Rule 144A and issued in definitive form will
be
substantially in the form of Exhibit A hereto (but without the
Global Note
Legend thereon and without the "Schedule of Exchanges of
Interests in the Global
Note" attached thereto). Each 144A Global Note will represent
such of the
outstanding Notes offered and sold in reliance on Rule 144A as
will be specified
therein and each shall provide that it represents the aggregate
principal amount
of outstanding Notes from time to time endorsed thereon and that
the aggregate
principal amount of outstanding Notes represented thereby may
from time to time
be reduced or increased, as appropriate, to reflect exchanges
and redemptions.
Any endorsement of a 144A Global Note to reflect the amount of
any increase or
decrease in the aggregate principal amount of outstanding Notes
represented
thereby will be made by the Trustee or the Custodian, at the
direction of the
Trustee, in accordance with instructions given by the Holder
thereof as required
by Section 2.06 hereof.
(c) Regulation S Global Notes. Notes offered and sold in
offshore
transactions in reliance on Regulation S shall be issued
initially in the form
of one or more temporary notes, in registered, global form,
without interest
coupons (the "Temporary Regulation S Global Note") and will be
substantially in
the form of Exhibit A hereto (including the Global Note Legend
thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached
thereto).
During the Restricted Period, beneficial interests in the
Temporary Regulation S
Global Note may be held only through Euroclear and Clearstream
(as indirect
participants in the Depositary), unless transferred to a Person
that takes
delivery through a Rule 144A Global Note in accordance with
Section 2.06 hereof.
Within a reasonable time period after the expiration of the
Restricted Period,
upon receipt by the Trustee and the Company of a duly executed
certificate
certifying that the Holder of the beneficial interest in the
Temporary
Regulation S Global Note is a Non-U.S. Person, substantially in
the form of
Exhibit G hereto from the Depositary, a single permanent global
Note in
registered form substantially in the form of Exhibit A hereto
(the "Permanent
Regulation S Global Note", and together with the Temporary
Regulation S Global
Note, the "Regulation S Global Note") duly executed by the
Company (and having
an executed Guarantee from each of the Guarantors endorsed
thereon) and
authenticated by the Trustee as hereinafter provided for shall
be deposited with
the Trustee, as custodian for the Depositary, and the Registrar
shall reflect on
its books and records the cancellation of the Temporary
Regulation S Global Note
and the issuance of the Permanent Regulation S Global Note.
Notes offered and
sold in offshore transactions in reliance on Regulation S and
issued in
definitive form will be substantially in the form of Exhibit A
hereto (but
without the Global Note Legend thereon and without the "Schedule
of Exchanges of
Interests in the Global Note" attached thereto). Each Regulation
S Global Note
will represent such of the outstanding Notes offered and sold in
offshore
transaction in reliance on Regulation S as will be specified
therein and each
shall provide that it represents the aggregate principal amount
of outstanding
Notes from time to time endorsed thereon and that the aggregate
principal amount
of outstanding Notes represented thereby may from time to time
be reduced or
increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement
of a Regulation S Global Note to reflect the amount of any
increase or decrease
in the aggregate principal amount of outstanding Notes
represented thereby
24
<PAGE>
will be made by the Trustee or the Custodian, at the direction
of the Trustee,
in accordance with instructions given by the Holder thereof as
required by
Section 2.06 hereof.
(d) Euroclear and Clearstream Procedures Applicable. The
provisions of the
"Operating Procedures of the Euroclear System" and "Terms and
Conditions
Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream will be
applicable to transfers
of beneficial interests in the Regulation S Global Note that are
held by
Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by
manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at
the time a Note is authenticated, the Note will nevertheless be
valid.
A Note will not be valid until authenticated by the manual
signature of
the Trustee. The signature will be conclusive evidence that the
Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company
signed by
at least two Officers (an "Authentication Order"), authenticate
Notes for
original issue that may be validly issued under this Indenture,
including any
Additional Notes. The aggregate principal amount of Notes
outstanding at any
time may not exceed the aggregate principal amount of Notes
authorized for
issuance by the Company pursuant to one or more Authentication
Orders, except as
provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company
to authenticate Notes. An authenticating agent may authenticate
Notes whenever
the Trustee may do so. Each reference in this Indenture to
authentication by the
Trustee includes authentication by such agent. An authenticating
agent has the
same rights as an Agent to deal with Holders or an Affiliate of
the Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes may be
presented
for registration of transfer or for exchange ("Registrar") and
an office or
agency where Notes may be presented for payment ("Paying
Agent"). The Registrar
will keep a register of the Notes and of their transfer and
exchange. The
Company may appoint one or more co-registrars and one or more
additional paying
agents. The term "Registrar" includes any co-registrar and the
term "Paying
Agent" includes any additional paying agent. The Company may
change any Paying
Agent or Registrar without notice to any Holder. The Company
will notify the
Trustee in writing of the name and address of any Agent not a
party to this
Indenture. If the Company fails to appoint or maintain another
entity as
Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act
as Depositary with respect to the Global Notes.
25
<PAGE>
The Company initially appoints the Trustee to act as the
Registrar and
Paying Agent and to act as Custodian with respect to the Global
Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the
Trustee to agree
in writing that the Paying Agent will hold in trust for the
benefit of Holders
or the Trustee all money held by the Paying Agent for the
payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes,
and will notify
the Trustee of any default by the Company in making any such
payment. While any
such default continues, the Trustee may require a Paying Agent
to pay all money
held by it to the Trustee. The Company at any time may require a
Paying Agent to
pay all money held by it to the Trustee. Upon payment over to
the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) will
have no further
liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it
will segregate and hold in a separate trust fund for the benefit
of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or
reorganization
proceedings relating to the Company, the Trustee will serve as
Paying Agent for
the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is
reasonably
practicable the most recent list available to it of the names
and addresses of
all Holders and shall otherwise comply with TIA Section 312(a).
If the Trustee
is not the Registrar, the Company will furnish to the Trustee at
least seven
Business Days before each interest payment date and at such
other times as the
Trustee may request in writing, a list in such form and as of
such date as the
Trustee may reasonably require of the names and addresses of the
Holders of
Notes and the Company shall otherwise comply with TIA Section
312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be
transferred except as a whole by the Depositary to a nominee of
the Depositary,
by a nominee of the Depositary to the Depositary or to another
nominee of the
Depositary, or by the Depositary or any such nominee to a
successor Depositary
or a nominee of such successor Depositary. All Global Notes will
be exchanged by
the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the
Depositary
that it is unwilling or unable to continue to act as Depositary
or that it
is no longer a clearing agency registered under the Exchange Act
and, in
either case, a successor Depositary is not appointed by the
Company within
120 days after the date of such notice from the Depositary;
(2) the Company in its sole discretion determines that the
Global
Notes (in whole but not in part) should be exchanged for
Definitive Notes
and delivers a written notice to such effect to the Trustee;
or
(3) there has occurred and is continuing a Default or Event
of
Default with respect to the Notes.
26
<PAGE>
Upon the occurrence of either of the preceding events in (1) or
(2) above,
Definitive Notes shall be issued in such names as the Depositary
shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in
whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and
delivered in exchange for, or in lieu of, a Global Note or any
portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be
authenticated and delivered in the form of, and shall be, a
Global Note. A
Global Note may not be exchanged for another Note other than as
provided in this
Section 2.06(a), however, beneficial interests in a Global Note
may be
transferred and exchanged as provided in Section 2.06(b), (c) or
(f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The
transfer and exchange of beneficial interests in the Global
Notes will be
effected through the Depositary, in accordance with the
provisions of this
Indenture and the Applicable Procedures. Beneficial interests in
the Restricted
Global Notes will be subject to restrictions on transfer
comparable to those set
forth herein to the extent required by the Securities Act.
Transfers of
beneficial interests in the Global Notes also will require
compliance with
either subparagraph (1) or (2) below, as applicable, as well as
one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global
Note.
Beneficial interests in any Restricted Global Note may be
transferred to
Persons who take delivery thereof in the form of a beneficial
interest in
the same Restricted Global Note in accordance with the
transfer
restrictions set forth in the Private Placement Legend;
provided, however,
that prior to the expiration of the Restricted Period, transfers
of
beneficial interests in the Regulation S Global Note may not be
made to a
U.S. Person or for the account or benefit of a U.S. Person
(other than an
Initial Purchaser). Beneficial interests in any Unrestricted
Global Note
may be transferred to Persons who take delivery thereof in the
form of a
beneficial interest in an Unrestricted Global Note. No written
orders or
instructions shall be required to be delivered to the Registrar
to effect
the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in
Global Notes. In connection with all transfers and exchanges of
beneficial
interests that are not subject to Section 2.06(b)(1) above, the
transferor
of such beneficial interest must deliver to the Registrar
either:
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions from the Depositary given in
accordance with the Applicable Procedures containing
information regarding the Participant account to be credited
with such increase; or
27
<PAGE>
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to
be
issued a Definitive Note in an amount equal to the
beneficial
interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the
Registrar containing information regarding the Person in
whose
name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in
accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2)
shall be deemed to
have been satisfied upon receipt by the Registrar of the
instructions contained
in the Letter of Transmittal delivered by the Holder of such
beneficial
interests in the Restricted Global Notes. Upon satisfaction of
all of the
requirements for transfer or exchange of beneficial interests in
Global Notes
contained in this Indenture and the Notes or otherwise
applicable under the
Securities Act, the Trustee shall adjust the principal amount of
the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global
Note. A beneficial interest in any Restricted Global Note may
be
transferred to a Person who takes delivery thereof in the form
of a
beneficial interest in another Restricted Global Note if the
transfer
complies with the requirements of Section 2.06(b)(2) above and
the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the
transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then
the
transferor must deliver a certificate in the form of Exhibit
B
hereto, including the certifications in item (2) thereof;
and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor
must
deliver a certificate in the form of Exhibit B hereto, including
the
certifications, certificates and Opinion of Counsel required by
item
(3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted
Global Note for Beneficial Interests in an Unrestricted Global
Note. A
beneficial interest in any Restricted Global Note may be
exchanged by any
holder thereof for a beneficial interest in an Unrestricted
Global Note or
transferred to a Person who takes delivery thereof in the form
of a
beneficial interest in an Unrestricted Global Note if the
exchange or
transfer complies with the requirements of Section 2.06(b)(2)
above and:
28
<PAGE>
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the holder of the beneficial interest to be transferred, in
the
case of an exchange, or the transferee, in the case of a
transfer,
certifies in the applicable Letter of Transmittal that it is not
(i)
a Broker-Dealer, (ii) a Person participating in the distribution
of
the Exchange Notes or (iii) a Person who is an affiliate (as
defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit
C
hereto, including the certifications in item (1)(a) thereof;
or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global
Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so
requests or if the Applicable Procedures so require, an Opinion
of Counsel in
form reasonably acceptable to the Registrar to the effect that
such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on
transfer contained herein and in the Private Placement Legend
are no longer
required in order to maintain compliance with the Securities
Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above
at a time when an Unrestricted Global Note has not yet been
issued, the Company
shall issue and, upon receipt of an Authentication Order in
accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted
Global Notes in an aggregate principal amount equal to the
aggregate principal
amount of beneficial interests transferred pursuant to
subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged
for, or transferred to Persons who take delivery thereof in the
form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
29
<PAGE>
(1) Beneficial Interests in Restricted Global Notes to
Restricted
Definitive Notes. If any holder of a beneficial interest in a
Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted
Definitive Note or to transfer such beneficial interest to a
Person who
takes delivery thereof in the form of a Restricted Definitive
Note, then,
upon receipt by the Registrar of written instructions from the
Depositary,
including registration instructions and the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted
Global Note proposes to exchange such beneficial interest for
a
Restricted Definitive Note, a certificate from such holder in
the
form of Exhibit C hereto, including the certifications in
item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB
in accordance with Rule 144A, a certificate to the effect set
forth
in Exhibit B hereto, including the certifications in item
(1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule
903 or Rule 904, a certificate to the effect set forth in
Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant
to an exemption from the registration requirements of the
Securities
Act in accordance with Rule 144, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in
item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from
the registration requirements of the Securities Act other than
those
listed in subparagraphs (B) through (D) above, a certificate to
the
effect set forth in Exhibit B hereto, including the
certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in
item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant
to an effective registration statement under the Securities Act,
a
certificate to the effect set forth in Exhibit B hereto,
including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the
Company shall execute and the Trustee shall authenticate and
deliver to the
Person designated in the instructions a Definitive Note in the
appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial
interest in a Restricted Global Note pursuant to this Section
2.06(c) shall be
registered in such name or names and in such authorized
denomination or
denominations as the holder of such beneficial interest shall
instruct the
Registrar through instructions from the Depositary and
30
<PAGE>
the Participant or Indirect Participant. The Trustee shall
deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any
Definitive Note issued in exchange for a beneficial interest in
a Restricted
Global Note pursuant to this Section 2.06(c)(1) shall bear the
Private Placement
Legend and shall be subject to all restrictions on transfer
contained therein.
(2) Beneficial Interests in Restricted Global Notes to
Unrestricted
Definitive Notes. A holder of a beneficial interest in a
Restricted Global
Note may exchange such beneficial interest for an Unrestricted
Definitive
Note or may transfer such beneficial interest to a Person who
takes
delivery thereof in the form of an Unrestricted Definitive Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the holder of such beneficial interest, in the case of
an
exchange, or the transferee, in the case of a transfer,
certifies in
the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of
the Exchange Notes or (iii) a Person who is an affiliate (as
defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so
requests or if the Applicable Procedures so require, an Opinion
of Counsel in
form reasonably acceptable to the Registrar to the effect that
such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on
transfer contained herein and in the Private Placement Legend
are no longer
required in order to maintain compliance with the Securities
Act.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial
interest in
an Unrestricted Global Note
31
<PAGE>
proposes to exchange such beneficial interest for a Definitive
Note or to
transfer such beneficial interest to a Person who takes delivery
thereof
in the form of a Definitive Note, then, upon satisfaction of
the
conditions set forth in Section 2.06(b)(2) hereof, the Trustee
will cause
the aggregate principal amount of the applicable Global Note to
be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company
will
execute and the Trustee will authenticate and deliver to the
Person
designated in the instructions a Definitive Note in the
appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial
interest pursuant to this Section 2.06(c)(3) will be registered
in such
name or names and in such authorized denomination or
denominations as the
holder of such beneficial interest requests through instructions
to the
Registrar from or through the Depositary and the Participant or
Indirect
Participant. The Trustee will deliver such Definitive Notes to
the Persons
in whose names such Notes are so registered. Any Definitive Note
issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(3)
will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted
Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted
Global Note or to transfer such Restricted Definitive Notes to a
Person
who takes delivery thereof in the form of a beneficial interest
in a
Restricted Global Note, then, upon receipt by the Registrar of
the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes
to exchange such Note for a beneficial interest in a
Restricted
Global Note, a certificate from such Holder in the form of
Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to
a QIB in accordance with Rule 144A, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item
(1)
thereof;
(C) if such Restricted Definitive Note is being transferred
to
a Non-U.S. Person in an offshore transaction in accordance with
Rule
903 or Rule 904, a certificate to the effect set forth in
Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of
the
Securities Act in accordance with Rule 144, a certificate to
the
effect set forth in Exhibit B hereto, including the
certifications
in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to
an Institutional Accredited Investor in reliance on an
exemption
from the registration requirements of the Securities Act other
than
those listed in subparagraphs (B) through (D) above, a
certificate
to the effect set forth in Exhibit B hereto,
32
<PAGE>
including the certifications, certificates and Opinion of
Counsel
required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to
the Company or any of its Subsidiaries, a certificate to the
effect
set forth in Exhibit B hereto, including the certifications in
item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities
Act, a certificate to the effect set forth in Exhibit B
hereto,
including the certifications in item (3)(c) thereof,
the Trustee will, upon surrender of the Restricted Definitive
Note, cancel the
Restricted Definitive Note, increase or cause to be increased
the aggregate
principal amount of, in the case of clause (A) above, the
appropriate Restricted
Global Note, in the case of clause (B) above, the 144A Global
Note, in the case
of clause (C) above, the Regulation S Global Note, and in all
other cases, the
IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive
Note may
exchange such Note for a beneficial interest in an Unrestricted
Global
Note or transfer such Restricted Definitive Note to a Person who
takes
delivery thereof in the form of a beneficial interest in an
Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the Holder, in the case of an exchange, or the transferee,
in
the case of a transfer, certifies in the applicable Letter
of
Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person
participating in the distribution of the Exchange Notes or (iii)
a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications
in
item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such
33
<PAGE>
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so
requests or if the Applicable Procedures so require, an Opinion
of Counsel in
form reasonably acceptable to the Registrar to the effect that
such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on
transfer contained herein and in the Private Placement Legend
are no longer
required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the subparagraphs
in
this Section 2.06(d)(2) and surrender of the Definitive Notes to
the
Trustee, the Trustee will cancel the Definitive Notes and
increase or
cause to be increased the aggregate principal amount of the
Unrestricted
Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted
Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted
Global
Note or transfer such Definitive Notes to a Person who takes
delivery
thereof in the form of a beneficial interest in an Unrestricted
Global
Note at any time. Upon receipt of a request for such an exchange
or
transfer and surrender of such Unrestricted Definitive Note, the
Trustee
will cancel the applicable Unrestricted Definitive Note and
increase or
cause to be increased the aggregate principal amount of one of
the
Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs
(2)(B), (2)(D)
or (3) above at a time when an Unrestricted Global Note has not
yet been
issued, the Company will issue and, upon receipt of an
Authentication
Order in accordance with Section 2.02 hereof, the Trustee
will
authenticate one or more Unrestricted Global Notes in an
aggregate
principal amount equal to the principal amount of Definitive
Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon
request by a Holder of Definitive Notes and such Holder's
compliance with the
provisions of this Section 2.06(e), the Registrar will register
the transfer or
exchange of Definitive Notes. Prior to such registration of
transfer or
exchange, the requesting Holder must present or surrender to the
Registrar the
Definitive Notes duly endorsed or accompanied by a written
instruction of
transfer in form satisfactory to the Registrar duly executed by
such Holder or
by its attorney, duly authorized in writing. In addition, the
requesting Holder
must provide any additional certifications, documents and
information, as
applicable, required pursuant to the following provisions of
this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes.
Any
Restricted Definitive Note may be transferred to and registered
in the
name of Persons who take delivery thereof in the form of a
Restricted
Definitive Note if the Registrar receives the following:
34
<PAGE>
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit
B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule
904, then the transferor must deliver a certificate in the form
of
Exhibit B hereto, including the certifications in item (2)
thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act,
then the transferor must deliver a certificate in the form
of
Exhibit B hereto, including the certifications, certificates
and
Opinion of Counsel required by item (3) thereof, if
applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes.
Any Restricted Definitive Note may be exchanged by the Holder
thereof for
an Unrestricted Definitive Note or transferred to a Person or
Persons who
take delivery thereof in the form of an Unrestricted Definitive
Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the Holder, in the case of an exchange, or the transferee,
in
the case of a transfer, certifies in the applicable Letter
of
Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person
participating in the distribution of the Exchange Notes or (iii)
a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant
to the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted
Definitive
Note, a certificate from such Holder in the form of Exhibit
C
hereto, including the certifications in item (1)(d) thereof;
or
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit
B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to
the Registrar
to the effect that such exchange or transfer is in compliance
with the
Securities Act and that the restrictions on transfer
contained
35
<PAGE>
herein and in the Private Placement Legend are no longer
required in order to
maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes.
A Holder of Unrestricted Definitive Notes may transfer such
Notes to a
Person who takes delivery thereof in the form of an
Unrestricted
Definitive Note. Upon receipt of a request to register such a
transfer,
the Registrar shall register the Unrestricted Definitive Notes
pursuant to
the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in
accordance with the Registration Rights Agreement, the Company
will issue and,
upon receipt of an Authentication Order in accordance with
Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal
amount equal to the principal amount of the beneficial interests
in the
Restricted Global Notes accepted for exchange in the Exchange
Offer by
Persons that certify in the applicable Letters of Transmittal
that (A)
they are not Broker-Dealers, (B) they are not participating in
a
distribution of the Exchange Notes and (C) they are not
affiliates (as
defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount
equal to the principal amount of the Restricted Definitive Notes
accepted
for exchange in the Exchange Offer by Persons that certify in
the
applicable Letters of Transmittal that (A) they are not
Broker-Dealers,
(B) they are not participating in a distribution of the Exchange
Notes and
(C) they are not affiliates (as defined in Rule 144) of the
Company.
Concurrently with the issuance of such Notes, the Trustee will
cause the
aggregate principal amount of the applicable Restricted Global
Notes to be
reduced accordingly, and the Company will execute and the
Trustee will
authenticate and deliver to the Persons designated by the
Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the
appropriate principal
amount.
(g) Legends. The following legends will appear on the face of
all Global
Notes and Definitive Notes issued under this Indenture unless
specifically
stated otherwise in the applicable provisions of this
Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global
Note and each Definitive Note (and all Notes issued in
exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
UNITED STATES
SECURITIES ACT, AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY
IS HEREBY
NOTIFIED THAT THE
36
<PAGE>
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER
EXEMPTION UNDER THE
SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES
FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR
OTHERWISE
TRANSFERRED ONLY (1) (a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES
ACT), PURCHASING FOR ITS OWN ACCOUNT IN A TRANSACTION MEETING
THE REQUIREMENTS
OF RULE 144A UNDER THE SECURITIES ACT, (b) IN A TRANSACTION
MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE
THE UNITED STATES
TO A PERSON THAT IS NOT A U.S. PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS
OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (d) TO AN
"ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7)
UNDER THE
SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT IS
PURCHASING AT
LEAST $100,000 OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF AN
INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF
COUNSEL IF THE
COMPANY SO REQUESTS) OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, PROVIDED THAT
IN THE CASE OF A
TRANSFER UNDER CLAUSE (e) SUCH TRANSFER IS SUBJECT TO THE
RECEIPT BY THE TRUSTEE
(AND THE COMPANY, IF IT SO REQUESTS) OF A CERTIFICATION OF THE
TRANSFEROR AND AN
OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE
SECURITIES ACT, (2) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR
(3) UNDER AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND,
IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND THE INDENTURE GOVERNING
THE NOTES AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY
PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET
FORTH IN (A) ABOVE. IF ANY RESALE OR OTHER TRANSFER OF ANY NOTE
IS PROPOSED TO
BE MADE UNDER CLAUSE (A)(1)(d) ABOVE WHILE THESE TRANSFER
RESTRICTIONS ARE IN
FORCE, THEN THE TRANSFEROR SHALL DELIVER A LETTER FROM THE
TRANSFEREE TO THE
COMPANY AND THE TRUSTEE WHICH SHALL PROVIDE, AMONG OTHER THINGS,
THAT THE
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR AND THAT IT
IS ACQUIRING THE
SECURITIES FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN
VIOLATION OF THE
SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(2),
(c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section
2.06
(and all Notes issued in exchange therefor or substitution
thereof)
will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend
in
substantially the following form:
37
<PAGE>
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT
OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE
MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE
COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(3) Temporary Regulation S Global Note Legend. In addition to
the
legend in subparagraph (1) above, prior to the end of the 40
day
distribution compliance period referenced in Regulation S, each
Temporary
Regulation S Global Note shall bear a legend in substantially
the
following form:
"BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S GLOBAL NOTE
WILL NOT BE
EXCHANGEABLE FOR INTERESTS IN THE RULE 144A GLOBAL NOTE OR
ANOTHER REGULATION S
GLOBAL NOTE OR ANY OTHER NOTE REPRESENTING AN INTEREST IN THE
NOTES REPRESENTED
HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON
TRANSFER, UNTIL
THE EXPIRATION OF THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD"
(WITHIN THE
MEANING OF RULE 903(c)(3) OF REGULATION S UNDER THE SECURITIES
ACT) AND THEN
ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE
TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR
U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE
REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION
COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S GLOBAL NOTE
MAY ONLY BE
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SOLD, PLEDGED OR TRANSFERRED THROUGH THE EUROCLEAR BANK
S.A./N.A., AS OPERATOR
OF THE EUROCLEAR SYSTEM OR CLEARSTREAM BANKING, SOCIETE ANONYME
AND ONLY (I) TO
THE COMPANY, (II) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (III)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904
UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER. (IF
AVAILABLE) OR (V)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT; AND IN
EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES. HOLDERS OF INTERESTS IN THIS
REGULATION S
GLOBAL NOTE WILL NOTIFY ANY PURCHASER OF SUCH RESALE
RESTRICTIONS, IF THEN
APPLICABLE."
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all
beneficial interests in a particular Global Note have been
exchanged for
Definitive Notes or a particular Global Note has been redeemed,
repurchased or
canceled in whole and not in part, each such Global Note will be
returned to or
retained and canceled by the Trustee in accordance with Section
2.11 hereof. At
any time prior to such cancellation, if any beneficial interest
in a Global Note
is exchanged for or transferred to a Person who will take
delivery thereof in
the form of a beneficial interest in another Global Note or for
Definitive
Notes, the principal amount of Notes represented by such Global
Note will be
reduced accordingly and an endorsement will be made on such
Global Note by the
Trustee or by the Depositary at the direction of the Trustee to
reflect such
reduction; and if the beneficial interest is being exchanged for
or transferred
to a Person who will take delivery thereof in the form of a
beneficial interest
in another Global Note, such other Global Note will be increased
accordingly and
an endorsement will be made on such Global Note by the Trustee
or by the
Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company
will execute and the Trustee will authenticate Global Notes and
Definitive
Notes upon receipt of an Authentication Order in accordance with
Section
2.02 hereof or at the Registrar's request.
(2) No service charge will be made to a Holder of a
beneficial
interest in a Global Note or to a Holder of a Definitive Note
for any
registration of transfer or exchange, but the Company may
require payment
of a sum sufficient to cover any transfer tax or similar
governmental
charge payable in connection therewith (other than any such
transfer taxes
or similar governmental charge payable upon exchange or transfer
pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
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<PAGE>
(3) The Registrar will not be required to register the transfer
of
or exchange of any Note selected for redemption in whole or in
part,
except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes
will be the valid obligations of the Company, evidencing the
same debt,
and entitled to the same benefits under this Indenture, as the
Global
Notes or Definitive Notes surrendered upon such registration of
transfer
or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15
days
before the day of any selection of Notes for redemption
under
Section 3.02 hereof and ending at the close of business on the
day
of selection;
(B) to register the transfer of or to exchange any Note
selected for redemption in whole or in part, except the
unredeemed
portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between
a record date and the next succeeding interest payment date.
(6) Prior to due presentment for the registration of a transfer
of
any Note, the Trustee, any Agent and the Company may deem and
treat the
Person in whose name any Note is registered as the absolute
owner of such
Note for the purpose of receiving payment of principal of and
interest on
such Notes and for all other purposes, and none of the Trustee,
any Agent
or the Company shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive
Notes
in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this
Section 2.06 to
effect a registration of transfer or exchange may be submitted
by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the
Company and the
Trustee receives evidence to its satisfaction of the
destruction, loss or theft
of any Note, the Company will issue and the Trustee, upon
receipt of an
Authentication Order, will authenticate a replacement Note if
the Trustee's
requirements are met. If required by the Trustee or the Company,
an indemnity
bond must be supplied by the Holder that is sufficient in the
judgment of the
Trustee and the Company to protect the Company, the Trustee, any
Agent and any
authenticating agent from any loss that any of them may suffer
if a Note is
replaced. The Company may charge for its expenses in replacing a
Note.
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<PAGE>
Every replacement Note is an additional obligation of the
Company and will
be entitled to all of the benefits of this Indenture equally and
proportionately
with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the
Trustee except for those canceled by it, those delivered to it
for cancellation,
those reductions in the interest in a Global Note effected by
the Trustee in
accordance with the provisions hereof, and those described in
this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof,
a Note does not
cease to be outstanding because the Company or an Affiliate of
the Company holds
the Note; however, Notes held by the Company or a Subsidiary of
the Company
shall not be deemed to be outstanding for purposes of Section
3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it will
be deemed
outstanding only if the Trustee receives proof satisfactory to
it that the
replaced Note is held by a protected purchaser within the
meaning of Section
8-303 of the New York Uniform Commercial Code.
If the principal amount of any Note is considered paid under
Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate
of any thereof) holds, on a redemption date or maturity date,
money sufficient
to pay Notes payable on that date, then on and after that date
such Notes will
be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal
amount of
Notes have concurred in any direction, waiver or consent, Notes
owned by the
Company or any Guarantor, or by any Person directly or
indirectly controlling or
controlled by or under direct or indirect common control with
the Company or any
Guarantor, will be considered as though not outstanding, except
that for the
purposes of determining whether the Trustee will be protected in
relying on any
such direction, waiver or consent, only Notes that a Responsible
Officer of the
Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery,
the Company
may prepare and the Trustee, upon receipt of an Authentication
Order, will
authenticate temporary Notes. Temporary Notes will be
substantially in the form
of certificated Notes but may have variations that the Company
considers
appropriate for temporary Notes and as may be reasonably
acceptable to the
Trustee. Without unreasonable delay, the Company will prepare
and the Trustee
will authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes will be entitled to all of the
benefits of this
Indenture.
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<PAGE>
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation.
The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered
to them for registration of transfer, exchange or payment. The
Trustee and no
one else will cancel all Notes surrendered for registration of
transfer,
exchange, payment, replacement or cancellation and will dispose
of canceled
Notes in accordance with its customary procedures (subject to
the record
retention requirement of the Exchange Act). The Company may not
issue new Notes
to replace Notes that it has paid or that have been delivered to
the Trustee for
cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it will pay
the defaulted interest in any lawful manner plus, to the extent
lawful, interest
payable on the defaulted interest, to the Persons who are
Holders on a
subsequent special record date, in each case at the rate
provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee
in writing of
the amount of defaulted interest proposed to be paid on each
Note and the date
of the proposed payment. The Company will fix or cause to be
fixed each such
special record date and payment date; provided that no such
special record date
may be less than 10 days prior to the related payment date for
such defaulted
interest. At least 15 days before the special record date, the
Company (or, upon
the written request of the Company, the Trustee in the name and
at the expense
of the Company) will mail or cause to be mailed to Holders a
notice that states
the special record date, the related payment date and the amount
of such
interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption
provisions of Section 3.07 hereof, it must furnish to the
Trustee, at least 30
days but not more than 60 days before a redemption date (or such
shorter period
as may be agreed between the Company and the Trustee), an
Officers' Certificate
setting forth:
(1) the clause of this Indenture pursuant to which the
redemption
shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If les
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